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The jury is still out

Criminal chaos or community justice in Orleans Parish?

New Orleans stands at the crossroads of a new opportunity to create a city jail that reflects values of fairness, equality, and justice for all.

This opportunity, partially made possible by the destruction of the old jail wrought by Hurricane Katrina, means the city looks forward to taking full advantage of Federal Emergency Management Agency’s (FEMA) subsidies for the costs of a building a new jail.

Yet the wisdom of this opportunity to achieve values of fairness and equality may be missed, if the people of New Orleans simply allow the city and the sheriff to build a new 5,800 bed jail and reinforce an old, broken, and failed criminal justice system.

Americans tend to believe, as a matter of common sense, that sending men to prison, and especially poor men of color, prevents crime. Yet, social scientists find a “puzzling discontinuity” between imprisonment rates, which increased every year from 1972 to 2009, and crime rates, which have been consistently inconsistent—up and down—during the same period. Scholars also recognize that more incarceration “will produce ever-decreasing marginal returns in public safety.” 2

Sadly, New Orleans, like Louisiana, leads the nation in its per-capita rate of incarceration. When Charles Foti was elected criminal sheriff for Orleans Parish in 1974, there were 800 inmates in Orleans Parish Prison [OPP], when 569,000 people lived in New Orleans. By the time Foti left in 2004 to become attorney general, OPP expanded to 8,500 inmates, ten times its 1974 population, while the population of New Orleans had declined to 461,600.

OPP had the ninth largest jail in the U.S. in 2004, behind Los Angeles County, New York City, Cook County, IL, Maricopa County, AZ, Harris County, TX, Philadelphia, PA, Dallas County, TX, and Dade County, FL.3 Although the OPP has declined to the thirty-fourth largest jail in U.S. as of 2009, largely due to the devastation wrought by Hurricane Katrina, it still leads in nation in its per capita rate of incarceration of nonviolent, misdemeanor offenders.4

OPP held about 7,200 inmates at the time of Hurricane Katrina. Five years post-Katrina, OPP incarcerates people at three times the national average, even without including the federal and state prisoners held. Eighty percent of those in city jails have not been convicted of any crime—they simply wait in jail for longer than detainees in any city in the country for their day in court.5

The significance of the fact that the Orleans Parish jail is called a prison may be lost for too many New Orleanians. This is a case where a county jail is named a prison yet functions like a prison that mostly incarcerates economically poor people of color.

The legal and public safety purpose of a city or county jail is to hold people awaiting trial who are assessed as a risk to public safety and for people sentenced for misdemeanors, commonly less than a year. In contrast, prisons are operated by federal or state corrections offices, and hold people convicted of crimes with multi-year sentences.

Unlike most county jails, OPP also has contracts to house state and federal prisoners, and so its serves as an “overflow” prison for the state Department of Corrections and the federal prison system. The facility thus mixes people convicted of violent crime with people awaiting trial or sentenced for nonviolent misdemeanors.

Orleans Parish District Attorney Leon Cannizzaro, no foe of getting tough on crime, articulated the failure of using the parish jail for incarceration in his comments to the Criminal Justice Committee Hearing for the city council and mayor on October 7, 2010:

[W]e have used jails to essentially warehouse people. We have been doing that for 20 years and what do we see—what have we accomplished? Not a whole lot in Orleans Parish. We’ve become the murder capital of America by doing that. This is an opportunity where we are going to build a new jail and we can maybe have an opportunity and try to do something and think outside the box and try to rehabilitate, restore people and when they do have the misfortune of maybe being incarcerated and let’s hope that we can let them be released from this facility with an education or some job skill so they do not find themselves coming back to the system again. I know that’s not an impossible thing, that’s something that can very well be done. But I think this gives the impetus for that by considering not putting the nonviolent people in jail.

The city of New Orleans pays the Orleans Parish Criminal sheriff $22.39 per day for each local prisoner OPP houses. This is known as the per diem funding system. It is a perverse way to fund a jail because it is a financial incentive for the sheriff to fill beds—if we build a 5,800 bed facility—the sheriff will fill it and New Orleanians will foot the bill.

The perversity of OPP’s funding gets worse. The American Civil Liberties Union, in its recently released report, “In For a Penny: The Rise of America’s New Debtors’ Prisons,” details how in New Orleans, the office of public defender, the courts’ general fund, the law enforcement fund, and other criminal justice funds all receive portions of fines and fees collected from economically poor defendants.

For example, the ACLU tells stories of defendants like Sean Matthews, who spent five months incarcerated waiting to see a judge over the $498 legal debt that he owed. Paying $22.39 per day for his incarceration, the city paid $3,201.77, more than six times the debt that Mr. Matthews owed. 7 This simply does not add up for the city, either financially or in procuring justice.

Judge Calvin Johnson, who spent nearly twenty years serving the bench in the Orleans Criminal District Court, recalls that defendants received “fines or time” sentences every day in municipal court. This often costs the City more than it collects. Judge Johnson explains that he heard “'30 days or $100' every day. Now, how can you describe a system where the city pays $23 a day to the sheriff to house someone in the jail for 30 days to collect $100 as anything other than crazy?” 8

Effectively, as Professor Pamela Metzger of Tulane University Law School puts it, the Orleans Parish criminal justice system simply “cannot afford to have fewer crimes.” 9 That is due, not only to the perversity of the per diem pay structure, but also to the Criminal District Court that collected at least $1,470,191 from defendants in 2009. The ACLU report makes clear that Orleans Parish criminal court system gains nearly two-thirds of its revenue from indigent defendants. 10

Paying for a “Cradle-to-Prison Pipeline”: The Collateral Costs of Incarceration

There is no doubt that New Orleans needs a smaller, safer, and more humane jail facility. The OPP has been cited by the U.S. Department of Justice in 2009 for a repeated pattern of civil rights violations, including violence in jail against prisoners and inhumane treatment of the mentally disabled. Building a bigger jail increases risks of exposing more New Orleanians to violent, inhumane conditions.

St Louis, Mo, also a river city, has a population of 356,587 (slightly larger than New Orleans) and its jail safely holds 1,232 inmates. A jail that reflects the national average detention rate would hold 850 prisoners or one bed per 388 residents. The sheriff’s proposal is one bed for every 60 residents.

Although the Federal Emergency Management Agency (FEMA) is subsidizing construction costs of a new jail, taxpayers of New Orleans will pay for daily operations, maintenance, the costs of evacuation in the case of a hurricane, and the collateral costs of increased recidivism, decreased economic mobility for former inmates, and the enduring negative economic consequences for neighborhoods and the entire city.

The negative economic consequences of incarceration on economic mobility, especially the disproportionate impact on communities of color in terms of employment, wages, and economic mobility is detailed by sociologists Bruce Western and Becky Pettit in “Collateral Costs: Incarceration’s Effect on Economic Mobility,” a study recently released by the Pew Center on the States.

"Collateral Costs" also examines negative consequences for children of the incarcerated. Too often we forget that those incarcerated are also fathers, uncles, sons, mothers, aunts, and sisters of families struggling to make ends meet in New Orleans. The study demonstrates how children of the incarcerated are at severe risk of becoming incarcerated themselves, of becoming depressed, agitated, hyperactive, and “acting out” in school, and being expelled.

Is this really what we want for the children of New Orleans? Do we really want to facilitate and fund what Marian Wright Edelman terms the “cradle-to-prison pipeline”? 11

The Question Before New Orleans: Same Old Criminal Chaos or Community Justice?

Jon Wool, director of the Vera Institute of Justice New Orleans office, clarifies the question about the criminal justice system five years after Hurricane Katrina: “[T]he jury is still out: will we rebuild the old system or reinvent one that is fairer and more effective?” 12

In the short term, New Orleans must utilize the best risk assessment tools that most cities across the nation already use to detain criminals who pose a real threat to public safety. That is the point of a jail—to house those who are a serious safety threat to the community—not the economically poor who have committed nonviolent and misdemeanor offenses..

In the longer term, the opportunity before the mayor and the city is to fund positive social investments that reduce detention rates, improve public safety, and promote the economic well-being of our neighborhoods and city. We know that increasing investments in affordable housing, education, access to mental health and substance abuse treatment, and job training and employment all contribute to the reduction in use of incarceration and to long term economic growth of our neighborhoods and city. That would be “money well spent.” 13 That would be choosing community justice over criminal chaos.

[1] I am indebted to Ms. Luceia LeDoux, Program Director, Public Safety and Government Oversight, Baptist Community Ministries, and my colleague Dr Sue Weishar who provided me with critical insight into the history and current practices of the criminal justice system of Orleans Parish.